: Kelly E. Fischer, Esq. Brian T. Stapleton, Esq. the victims of said shooting. Defendant, Gander the victims any that sells hunting, fishing and camping ed States District Judge Plaintiff,Defendant. 3:11-CV–00384 MEMORANDUM-DECISION and ORDER The present case is one which arises out of the Court’s diversity jurisdiction pursuant to The present case is one which arises out of the Court’s diversity Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 1 of 31 of 1 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case 28 U.S.C. § 1332 (c) (1). The case was removed by defendant from New York Supreme Court in New York Supreme by defendant from 28 U.S.C. § 1332 (c) (1). The case was removed shooting and assault that occurred in April 2009 in a mass County. The dispute concerns Broome The Wong. The shootings and assaults were perpetrated by Jiverly the City of Binghamton. plaintiff herein represents the estate of one of I. INTRODUCTION Mountain, Inc., is an outdoor outfitting comp vs. INC., GANDER MOUNTAIN, :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPEARANCES:FISHER & FISHER 142 Front Street P.O. Box 200 New York 13905 Binghamton, Attorney for Plaintiff GOLDBERG SEGALLA, LLP 11 Martine Avenue, 7th Floor Plains, New York 10606 White Attorneys for Defendant OF COUNSEL: Unit NORMAN A. MORDUE, Senior (NAM/DEP) UNITED STATES DISTRICT COURT STATES DISTRICT UNITED OF NEW YORK DISTRICT NORTHERN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: AL-SALIHI, individually SAMIR MUHAMMAD of the estate as representative KHALIL, Deceased, of LAYLA SALMAN NAM undisputed by plaintiff since plaintiff has undisputed by plaintiff Binghamton, New York. Jiverly Wong was a New York. Jiverly Wong Binghamton, those firearms to shoot and kill thirteen (13) those firearms -2- nd the injury of four (4) others, at the American nd the injury of four (4) others, at The Court notes that the following facts are The Court notes Al-Salihi brings suit against Gander Mountain, Inc. on Muhammad Plaintiff Samir Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 2 of 31 of 2 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case failed to interpose a response to defendant’s motion for summary judgment. This case arises out This case arises judgment. for summary a response to defendant’s motion failed to interpose (13) people, a of the shooting deaths of thirteen of April 3, 2009. On the morning New York on April Civic Association (“ACA”) in Binghamton, car to barricade used his his car to the rear door of the ACA. Wong drove 3, 2009, Jiverly Wong not get out. He then entered the front of the ACA in the rear exit so those inside could He used possession of several loaded firearms. were shot others. Several of his victims individuals, and to seriously injure four (4) unarmed of them or that any knew any of his victims, that Wong than once. There is no evidence more After or mistaken. shootings were accidental Wong’s There is no evidence that were armed. took his own life. Mr. Wong his rampage, murder Wong’s Khalil. Layla Khalil was one of behalf of his deceased wife, Layla Salman her death, she of United States. At the time to the Layla Khalil was an Iraqi immigrant victims. was living with her husband and youngest son in was also living in of his death, Mr. Wong to the United States. At the time immigrant Vietnamese the City of Binghamton. equipment. Plaintiff’s complaint sounds in wrongful death and negligent entrustment, and is and negligent entrustment, wrongful death sounds in Plaintiff’s complaint equipment. Defendant prior to the shootings. Wong to firearms sale of certain Gander Mountain’s based on Plaintiff has not complaint. in the all claims to dismiss judgment for summary has moved motion. opposed defendant’s II. BACKGROUND AND PROCEDURAL FACTUAL NAM ires about the applicant, the results of which ires about the applicant, the results ss or investigator. Applicants are required to ss or investigator. Applicants are non-family character references. The BCSD will character references. The BCSD non-family -3- ovide basis for further inquiry, the Sheriff’s BCSD ovide basis for further inquiry, the further investigation is undertaken. The BCSD also on with the Broome County Sheriff’s Department on with the Broome One segment of Gander Mountain’s business involves the buying and selling of the buying business involves Gander Mountain’s of One segment The application also requires a mental hygiene check on the applicant. The BCSD requests The application also requires a mental Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 3 of 31 of 3 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case firearms in interstate commerce. Gander Mountain is the holder of a Federal Firearms License Firearms holder of a Federal Mountain is the Gander commerce. in interstate firearms Residents of Broome commerce. in interstate sell firearms it to buy and (“FFL”) that permits to New to do so pursuant first obtain a permit must to legally possess a firearm County who wish who applies for a County resident Broome §§ 265.01, 265.20(a)(3), 400. Every York Penal Law fill out an applicati must permit firearms any third and cannot be accessed by application process is confidential, permit (“BCSD”). The involved with it as a witne party not immediately and four provide proper identifying information provide these references with confidential questionna provide these references with confidential are reviewed by the Sheriff. If the responses pr are reviewed by the Sheriff. If the the references in person. The interviews are confidential. will send out a detectives to interview applicant himself detective will ask the permit investigation is required, the assigned further If of the reference(s) who raised an issue is kept strictly about the issued raised. The identity confidential. and advise if there are records that the New York State Mental Hygiene Unit search its database institution. If (voluntarily or involuntarily) to a public mental of the applicant being committed Sheriff’s so, those records (even if sealed) are obtained and reviewed by the If the files reveal “a red flag,” Department. County conduct an “internal” agencies in Broome requests that all other law enforcement agencies search their County law enforcement background check on the applicant. All Broome NAM nvestigation of the applicant. Assuming the nvestigation of the applicant. Assuming c.). If the police learn that a permitee has c.). If the police learn that a permitee indicates the need for further investigation, it indicates the need -4- Once a permit is issued, it physically remains with the holder until it is either with the holder until it is issued, it physically remains Once a permit Applicants are also fingerprinted, and the prints are sent to the Department of Criminal are sent to the Department fingerprinted, and the prints Applicants are also County are forwarded to a Broome and pertinent documentation The recommendation Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 4 of 31 of 4 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case Court approves the application, a written permit is issued and provided to the applicant. written permit Court approves the application, a revoked. This happens when the police receive complaints suspended or permanently temporarily violence holder that require investigation (typically domestic about the permit disputes, public intoxication, drunk driving, fights, et and surrender of the firearms behaved in any fashion that justifies investigation, a temporary and the permit. holder surrender the firearms license follows. The police request that the permit records for any complaints in which the applicant was named: traffic tickets, drunk driving traffic tickets, drunk was named: the applicant in which any complaints records for applicant’s name etc.. If the infractions, major infraction, disputes, minor domestic complaints, are forwarded to the Broome record, those records County law enforcement appears on a Broome If review for review. Department County Sheriff’s is undertaken. automatically check. Certain search results background for nationwide criminal Justice in Albany domestic convictions, violent misdemeanor disqualify the applicant: felony convictions, for a period of greater than thirty days in a mental restraining orders, involuntary commitments Once all background investigations are incompetence. institution, and declarations of mental a who makes County Undersheriff, by the Broome and reviewed the data is compiled performed, should be granted. as to whether the permit written recommendation occasions, the On many permit. issues or denies the applicant’s Court Judge, who ultimately County Court Judge would conduct his own i Broome NAM vil Division is automatically copied on vil Division is automatically only incident involving Wong or his family is or his family only incident involving Wong -5- cation. Undersheriff Minor found nothing in cation. Undersheriff Minor found The Broome County Sheriff’s Department Ci Sheriff’s Department County The Broome Undersheriff Alex Minor located and reviewed Mr. Prior to his deposition in this case, Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 5 of 31 of 5 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case all restraining orders issued by the Broome County Family, Civil and Criminal Courts. The civil Civil and Criminal County Family, issued by the Broome all restraining orders for a is involved. If so, an application holder the TROs daily to see if a permit division reviews a permit issuing the restraining order. When sent to the judge “take away” order is automatically The stay with the Sheriff’s Department. and the firearms revoked, the permit is permanently to another licensed dealer or permit are given an opportunity to sell the arms owners firearms are destroyed. holder. If they are not sold, the arms appli permit firearms un-redacted Wong’s The police sister called the BCSD to report a suspected break-in at their home. when Wong’s investigated and concluded that no one had broken into the home. was never suspended or revoked prior to his death. restricted carry permit Mr. Wong’s Both remain with the police until the investigation is completed. If no grounds exist to retain the no grounds exist If is completed. the investigation the police until with Both remain should be that the license reveals If the investigation they are returned. and the license, firearms granted, the license and the court. If request a “take away” order from revoked, the police with the BCSD. remain firearms the application (or its completed and returned records) that constituted a “red flag” sufficient to sufficient records) that constituted a “red flag” and returned the application (or its completed County in Broome permit carry firearms applied for a restricted deny the application. Mr. Wong was was granted, and on June 2nd, 1997 Mr. Wong on June 26th, 1996. That application #C18839R. In the twelve-year license permit, firearms County restricted carry issued a Broome were ever about Mr. Wong or other complaints leading up to April 3, 2009, no criminal interim received by the BCSD. Exhibit S at 53-60. The NAM -6- (“BATF”) Form 4473 begins. All firearms sellers All firearms 4473 begins. (“BATF”) Form In New York the process of selling a firearm involves several steps. The process starts involves several steps. a firearm In New York the process of selling Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 6 of 31 of 6 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case in the United States are required to fill out a BATF form 4473 for each firearm sold. The purpose sold. 4473 for each firearm to fill out a BATF form in the United States are required The by law enforcement. for the traceability of the subject firearm is to allow of the 4473 form sitting: certain sections of in its entirety in a single is not completed 4473 form sections are completed and the remaining is purchased, when the firearm are completed the form is provided on the 4473 form The information is actually transferred. when the firearm buyers are required to in question. Firearms by both the buyer and the seller of the firearm on questions 1 through 10 in “Section A” of the 4473 provide accurate identifying information in They are also required to provide correct answers concerning their background form. are sellers Firearms form. response to questions 11a through 12 on “Section A” of the 4473 about the gun being sold, as well as the required to provide specific identifying information when a potential buyer visits a store that sells firearms, displays a valid firearms permit, and then permit, displays a valid firearms that sells firearms, when a potential buyer visits a store before present a valid permit in buying. The buyer must he/she is interested selects a firearm the completion selects the desired firearm, Once the buyer to touch a firearm. he/she is permitted and Firearms of a Bureau of Alcohol Tobacco Gander Mountain employee David Henderson confirmed that Wong’s permit was valid at the was valid at permit that Wong’s confirmed David Henderson employee Gander Mountain Wong was valid because permit Wong’s knew Henderson sales to Wong. of the firearms time been it. Had the permit when he needed to present of the permit was in physical possession his wouldn’t have had it in Mr. Wong same, or under investigation for the suspended, revoked, of was valid at the time permit Wong’s that Undersheriff Minor confirmed possession. Similarly, or Had the license been suspended that time. it was in his possession at the shootings, because him. have been physically taken from revoked it would NAM -7- All firearms buyers must pass a criminal background check as a pre-requisite to the check as a pre-requisite background pass a criminal must buyers All firearms the FBI will typically contact local police and In the case of a “delay” response, Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 7 of 31 of 7 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case sale. As part of filling out a 4473 form, the seller must request that a criminal background check that a criminal request the seller must filling out a 4473 form, sale. As part of by form on the 4473 be documented results of that check must on the buyer. The be performed the National are conducted by the FBI using York, these background checks the seller. In New FBI NICS called the “NICS” system). (commonly Background Check System Instant Criminal A “deny,” “proceed,” or “delay” response. provide the seller with either a investigators will and is that the sale cannot go forward under any circumstances “deny” response means that the buyer has passed the FBI’s response means A “proceed” terminated. immediately that the FBI means proceed. A “delay” response immediately background check, and the sale can before issuing a response of “proceed” or “deny.” In the wishes to investigate the buyer further wait until either a “proceed” response is must sale of the firearm event of a “delay” response, the the date the background check was business days pass from received by the seller, or three (3) being received. first requested without a NICS response on the buyer. The three-day waiting period triggered by request additional investigation(s) a “delay” investigations. When these additional “delay” responses is intended to accommodate as County investigation process is essentially the same response is received, the local Broome the BCSD requests that all other law permit: a firearm when an individual is applying for County conduct a renewed “internal” background check on the agencies in Broome enforcement agencies again search their records for any County law enforcement potential buyer. All Broome domestic traffic tickets, drunk driving complaints, in which the applicant was named: complaints individual(s) who participate in the sale. who participate individual(s) NAM

1 the buyer must then give the Bill of Sale and then give the Bill of Sale the buyer must r to obtain local permission to buy the firearm. buy the firearm. to r to obtain local permission -8- If the additional investigation produces a “deny” response, that is communicated to the to response, that is communicated investigation produces a “deny” If the additional Until local permission to purchase the firearm is obtained and the buyer’s permit is and the buyer’s permit is obtained to purchase the firearm Until local permission extensively on how to safely and legally sell Gander Mountain trains its employees Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 8 of 31 of 8 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case When Gander Mountain receives a “delay” response, it has a policy of waiting at least eight When check before taking the next step in the sale process. the date it requests a NICS (8) days from in this case, the purchased the pertinent firearms In the Johnson City store, where Wong proceeding with the policy was to wait ten (10) days to receive a NICS response before transfer. 1 seller, who in turn advises the potential buyer that the sale cannot proceed. Once the seller the sale cannot proceed. Once advises the potential buyer that seller, who in turn provides the and the seller for the firearm response, the purchaser pays receives a “proceed” County, Bill of Sale. In Broome buyer with his/her to the BCSD in orde permit his original firearms disputes, minor infractions, major infractions, etc.. If the buyer’s name appears on a Broome appears on a name If the buyer’s infractions, etc.. major infractions, minor disputes, If review BCSD for review. to the records are forwarded record, those enforcement County law for further investigation, it is undertaken. indicates the need The BCSD fills out an amendment form and issues a coupon. The coupon is sent to a Broome and issues a coupon. form The BCSD fills out an amendment Once signed, the coupon is returned to the BCSD. Once a County Court judge for signature. added to the buyer’s permit. is physically the firearm coupon is issued, a description of store. However, once a coupon is issued and in the seller’s itself remains the firearm amended, the back to the seller. After the buyer will take both documents is amended, the buyer’s permit of the 4473 sections license, the remaining on the coupon and the seller verifies the information is transferred to the firearm is filled out correctly, Provided the 4473 form are completed. form is and transfer of a firearm the buyer, who takes physical possession of it. At this point the sale complete. NAM suspect and avoid “straw sales” of firearms. firearms. suspect and avoid “straw sales” of employees that they have wide discretion to employees was focused on written materials disseminated by disseminated on written materials was focused -9- After successfully completing the 3.5 computer course, Gander Mountain trainees are the 3.5 computer After successfully completing Gander Mountain employees face no employment repercussions if a sale is refused. employment face no Gander Mountain employees Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 9 of 31 of 9 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case firearms. Initially, Gander Mountain’s training Gander Mountain’s Initially, firearms. the company. However, Gander Mountain later utilized a computer-based training program training utilized a computer-based Mountain later Gander However, the company. the various issues to properly fill out a 4473, and focuses on how program called “3.5.” The 3.5 is a chapter-based to the program. process. There is also a video component surrounding this before continuing to the a test at the end of each chapter that requires trainees to pass program the law. Gander whenever there is a change in circulated by Gander Mountain next. Updates are annual refresher courses. are also given Mountain employees that consists of being “glued to the side” of a more provided with on-the-job experience period of observation, trainees are then allowed to make experienced associate. After a suitable utilizes a “second check” policy that requires one gun sales on their own. Gander Mountain and for completeness filled out by another employee to review a 4473 form employee department to are trained accuracy. Gander Mountain employees A straw sale is the purchase of a firearm by a qualified buyer made on behalf of an unqualified a qualified buyer made by firearm A straw sale is the purchase of a trains its individual. In addition, Gander Mountain which under unsuitable. Circumstances sales to any potential buyer they deem refuse firearms seeking to buy firearms, sales can be declined include straw sales, intoxicated customers belligerent in the store. This who become unstable, or customers who appear mentally customers all. If a to any particular reason, but can be based on any reason at discretion is not limited can decline a sale feels that a buyer is inappropriate, the employee Gander Mountain employee it at any time. or terminate NAM liber pistol (serial # PKO7133). Mr. Wong liber pistol (serial # PKO7133). nder Mountain requested a NICS check on Mr. nder Mountain requested a NICS -10- on City, New York. Two (2) firearms were on City, New York. Two (2) firearms rly Wong bought seven (7) different firearms rly Wong These dealers included Ben’s Gun Shop in Owego, These dealers included Over the course of several years, Jive Over the course 2008. Prior to this pistol (“the 92 FS”) on March 7, 92 FS 9mm paid for the Beretta Wong pistol (“the PX4”) on January 30, 2009. Prior to paid for the Beretta PX4 Storm Wong Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 10 of 31 of 10 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case from dealers in Owego, Endicott and Johnson City, New York. Mr. Wong sold five (5) of these sold five Wong and Johnson City, New York. Mr. dealers in Owego, Endicott from dealers. back to various firearms firearms in Endicott, New Endicott Arms in Endicott, New York, West New York, McLains Sport Goods Store in Johns York, and the Gander Mountain pistol (serial FS 9mm a Beretta 92 rampage: shooting the scene of Mr. Wong’s recovered from .45 ca and a Beretta PX4 Storm BER403241) number at Gander Mountain’s Johnson City store. purchased these firearms in its store to Gander Mountain’s Johnson City store from sale, the 92 FS had been shipped 7, 2008, Ga Fredericksburg, Virginia. On March FS. On March 9, 2008, Gander Mountain received a in connection with the sale of the 92 Wong obtained the written the sale of the 92 FS. Wong the FBI authorizing “proceed” response from County Court to purchase the 92 FS on March 18, 2008. of the Broome permission The 92 FS was transferred to He subsequently had the 92 FS added to his restricted carry permit. by Gander Mountain on March 21, 2008. Wong firearms City store from this sale, the PX4 had been shipped to the Gander Mountain’s Johnson However, Gander Mountain trains its employees to always involve another employee in the another employee to always involve trains its employees Gander Mountain However, the frustrated buyer any event since this happens in matter, As a practical refusal decision. As a result, being told he can’t buy a firearm. after to speak to a manager invariably demands of eyes” on the refusal decision. than one set there is always “more NAM Mountain did not receive any further response Mountain did not receive any further -11- The identifying information provided by Mr. Wong on the 92 FS 4473 form was FS 4473 form on the 92 by Mr. Wong provided The identifying information Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 11 of 31 of 11 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case distributor and FFL holder Bill Hicks & Co., located in Minneapolis, Minnesota. Gander Minnesota. Co., located in Minneapolis, Bill Hicks & and FFL holder distributor sale of the PX4 with the in connection on Mr. Wong a NICS check initially requested Mountain response from Mountain received a “proceed” On February 1, 2009 Gander on January 30, 2009. the PX4 County Court to purchase of the Broom obtained the written permission the FBI. Wong restricted carry permit. had the PX4 added to his subsequently 2009. Mr. Wong on February 12, Johnson City store did not return to Gander Mountain’s are unknown, Mr. Wong For reasons that (30) days than thirty Since this was more transaction until March 11, 2009. to finish the PX4 the NICS check was requested, a new 4473 form was initially filled out and after the 4473 form on March Accordingly, check had to be completed. had to be filled out, and a new background was started. On for the PX4 was voided, and a new 4473 form 11, 2009 the original 4473 form requested a second NICS check in connection with the sale of March 11, 2009, Gander Mountain a “delay” response to this second request. The delay the PX4. Gander Mountain received could be transferred by March 17, 2009 in the event no further response indicated that the PX4 that date. Gander NICS response was received by from NICS by March 21, 2009. On March 21, 2009, Gander Mountain transferred the PX4 to Mr. 21, 2009. On March 21, 2009, Gander Mountain transferred NICS by March from by place ten (10) days after the second NICS check was requested The transfer took Wong. Gander Mountain. his background on the 92 FS 4473 correctly answered the questions about accurate. Mr. Wong complies provided by Gander Mountain on the 92 FS 4473 form The information form. provided identifying information with the Gun Control Act of 1968, 18 U.S.C. § 921 et seq.. The correctly answered the questions was accurate. Mr. Wong on the PX4 4473 form by Mr. Wong NAM -12- tification Mr. Wong’s shooting and killing of Ms. tification Mr. Wong’s Layla Salman Khalil was taking an English course inside the ACA on the morning of morning course inside the ACA on the Khalil was taking an English Layla Salman Al-Salihi, acting as an individual Muhammad On April 1, 2011, plaintiff Samir Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 12 of 31 of 12 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case April 3, 2009. Ms. Khalil and Jiverly Wong did not know each other at the time of the shootings. each other at the time did not know Khalil and Jiverly Wong April 3, 2009. Ms. did nothing to Ms. Khalil and defenseless. shootings, Ms. Khalil was unarmed the of At the time as the initial aggressor and his acted In shooting Ms. Khalil, Mr. Wong provoke Mr. Wong. factual jus shooting of Ms. Khalil was without acts. Khalil were criminal with notice and a summons filed Mr. Khalil, the estate of person and as representative of Plaintiff’s action Court. County Supreme against Gander Mountain in the Broome complaint PX4 and the 92 FS pistols civil liability upon Gander Mountain for its sale of the seeks to impose of $3.5M based on Wong’s in the amount damages monetary and seeks to recover to Wong the ACA on April 3, 2009. Plaintiff’s complaint use of the PX4 and 92FS pistols at criminal Gander Mountain; 2) from purchased firearms JiverlyWong alleges that: 1) in 2008 and 2009 exhibited behavior indicating that he was “mentally of these sales Wong prior to and at the time involving in a manner unstable, angry, upset, aggressive…and likely to use the weapons had encounters with Gander Mountain unreasonable risk of physical injury to others; 3) Wong was so “difficult” that Gander Mountain and during which he cursed at them, employees Plaintiff alleges that these events to assist him. other employees needed help from employees dangerous, and that Gander was should have put Gander Mountain on notice that Wong about his background on the 4473 form for the PX4. The information provided by Gander information for the PX4. The the 4473 form background on about his U.S.C. § 921 et Act of 1968, 18 Gun Control with the complies form on the PX4 4473 Mountain seq. NAM rrogatories upon the plaintiff seeking, rrogatories upon d to Gander Mountain’s interrogatories. In d to Gander Mountain’s interrogatories. specify any date(s), time(s), location(s), or specify any date(s), time(s), r’s demand for specific description(s) of the for specific description(s) r’s demand s counsel claimed it was “impossible” to respond “impossible” it was s counsel claimed . Wong. Likewise, plaintiff’s counsel failed to Likewise, . Wong. el claimed a lack of knowledge and a resulting a lack of knowledge and a el claimed showing he was “aggressive, mentally unstable “aggressive, mentally showing he was at Gander Mountain should have been put on s counsel claimed that Wong “acted in an angry that Wong s counsel claimed -13- ff’s counsel generally identified the only locations ff’s counsel generally identified On June 9, 2011, Gander Mountain propounded inte Gander Mountain propounded On June 9, 2011, Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 13 of 31 of 13 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case need for further discovery. Otherwise, plainti need for further discovery. Otherwise, inter alia, the date(s), time(s) and location(s) of Wong’s allegedly threatening behavior; specific allegedly threatening and location(s) of Wong’s time(s) inter alia, the date(s), engaged in the behavior Wong description(s) of who witnessed all such Mountain employees and the identities of the Gander and threatening”; 20, 2011, plaintiff responde behavior. On September Wong’s and location(s) of for the date(s), time(s) response to Gander Mountain’s demand couns allegedly threatening behavior, plaintiff’s in Johnson City” and the alleged conduct as the being “Gander Mountain store of Mr. Wong’s County Library.” In response to Gande “Broome engaged in, plaintiff’ threatening behavior Wong plaintiff’ without further discovery. Otherwise, and angry” with Gander “obviously upset “used aggressive language,” or became or manner,” failed to Plaintiff’s counsel Mountain employees. other participant(s) to these episodes besides Mr behaved toward or interacted in which Wong identify with any particularity the specific manner such th with any Gander Mountain employee(s) for specific demand In response to Gander Mountain’s posed a risk of harm. notice that Wong Wong, who witnessed all such threatening behavior by Jiverly the identities of the employees Mountain’s sale of the weapons constitutes negligent entrustment. According to plaintiff, Gander According negligent entrustment. constitutes sale of the weapons Mountain’s unfit to possess who was clearly an individual to Wong, firearms is liable for selling Mountain them. NAM in all testified about their interactions with in all testified about their interactions deo clips show Mr. Wong standing calmly at the standing calmly deo clips show Mr. Wong on and James Bedrin. However, plaintiff’s Bedrin. However, on and James uding James Bedrin, David Henderson, Benjamin Bedrin, David Henderson, uding James -14- responses to Gander Mountain’s interrogatories be responses to Gander Mountain’s counsel failed to respond to Gander Mountain’s counsel failed to respond to Gander s behavior provoke any visible reaction in these numerous customers walking byWong and standing walking byWong customers numerous nder Mountain propounded detailed requests for nder Mountain propounded detailed Following receipt of the plaintiff’s initial discovery responses, present and former of the plaintiff’s initial discovery Following receipt Gander Mountain’s surveillance cameras captured footage of Mr. Wong inside the captured footage of Mr. Wong Gander Mountain’s surveillance cameras Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 14 of 31 of 14 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case counsel failed to identify the date(s), time(s), or location(s) of any interactions between Wong, of any interactions or location(s) the date(s), time(s), failed to identify counsel in manner with any particularity the specific Bedrin. He also failed to identify Henderson and/or should have and/or Bedrin such that Gander Mountain interacted with Henderson which Wong of harm. posed a risk that Wong been put on notice incl were deposed, employees Gander Mountain Clute and Bedr Clute and Kevin McKown. Henderson, of Gander Mountain’s Johnson City Store. Gander maintains inside and outside Mr. Wong in the Johnson City and was able to isolate clips of Wong surveillance video in all of its stores, depositions, defense counsel of these the completion store prior to the shootings. Following that his wrote to plaintiff’s counsel requesting responses as requested. his interrogatory Plaintiff’s counsel failed to supplement supplemented. for Ga On or about June 21, 2012, counsel on plaintiff’s counsel. Plaintiff’s admissions plaintiff’s counsel identified only David Henders only David counsel identified plaintiff’s requests for admissions. Johnson City store on different occasions. The vi does on video. At no time in an agitated manner behave does Mr. Wong At no time customers. gun counter in the Johnson City store, speaking with various Gander Mountain employees and Mountain employees gun counter in the Johnson City store, speaking with various Gander The clips also show inspecting firearm(s). neither his presence nor hi right next to him; NAM (continued...) oyees Bedrin, Clute and Henderson. Mr. oyees Bedrin, Clute with you and you personally interacted with him, did he with you and you personally interacted with him, He was a quiet man who frequently visited the who frequently He was a quiet man store and you were dealing with him, did he ever behave store and you were dealing with him, presence to another person, that he was going to harm -15- llowing testimony concerning his observations of Wong’s llowing testimony 2 Wong was well-known to Gander Mountain empl was well-known to Gander Wong 3.5 years and during by Gander Mountain for approximately Mr. Bedrin was employed Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 15 of 31 of 15 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case During his deposition transcript, Bedrin gave the fo behavior: that Mr. Wong was in the store Q: Now, during the time ever behave in a way that led you to think he was threat of harm to himself? ever behave in a way that led you to think he was threat of harm A: Absolutely not. in the when he was Q: Different question. At any time in a way that led you to think he was a threat of harm to others? in a way that led you to think he was a threat of harm A: Absolutely not. Q: Did he ever voice to you or while you were in his Gander Mountain? he was purchasing from with a firearm himself 2 Wong was a “regular” in the firearms department. department. was a “regular” in the firearms Wong was a Wong trouble while on the premises. and never caused by himself, store, was always had difficulty speaking Wong spoke English as a second language. who immigrant Vietnamese the best, and Wong to understand Clute and Bedrin seemed and understanding English clearly. often. most they therefore dealt with him and fifty (50) times between twenty (20) Bedrin personally interacted with Wong this time titles was than this. One of Mr. Bedrin’s times in the store more although he saw Wong of “dozens and dozens” specialist. In this context, he personally dealt with Wong ammunition less although much when he wished to buy a firearm, with Wong Bedrin also dealt times. during any of in time At no point purchase ammunition. frequently than when he helped Wong that Mr. Bedrin felt was threatening, ever behave in a manner these instances did Wong potentially violent, or otherwise unusual. Mr. Wong behave in an angry manner on video. At no time does Mr. Wong behave in a Mr. Wong does no time on video. At an angry manner behave in Mr. Wong on aggressive manner behave in an Wong does Mr. At no time on video. manner threatening video. NAM . Wong in the store, did he ever behave in a way that believed that Wong was Korean or possibly was believed that Wong -16- you personally, indicate that he was going to harm anybody you personally, indicate that he was going to harm asing or transferring from Gander Mountain? asing or transferring from Mr. Henderson was employed by Gander Mountain from August 2006 to December August 2006 Mountain from by Gander was employed Mr. Henderson Deposition Transcript of James Bedrin, pp. 34-36. Deposition Transcript of James Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 16 of 31 of 16 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case else with a firearm he was either purch else with a firearm A: No, absolutely not. Q: I want you to look back on all your interactions with Mr A: No, absolutely not. Q: Did he ever, while either in your presence or to a firearm? to buy led you to think, for any reason whatsoever, that you should not allow this man A: No. See (...continued) 2 2006 as a part-time salesman in the Gun Department. He became a full-time employee in January employee a full-time He became Department. in the Gun salesman a part-time 2006 as was Mr. Henderson’s employment in that capacity until April 2009. 2007, and continued with news communications of GM’s policy regarding unauthorized for violations terminated Mr. Henderson with his termination. that he understood and agreed Henderson testified media. store on in the GM Mr. Wong He dealt with interactions with Jiverly Wong. clearly recalled his with Wong had a very, very brief encounter occasions. In addition, Henderson three (3) separate alone. was during these interactions, Wong At all times Supermarket. at a local Wegman’s to the store to buy a came Wong was when Mr. Wong Henderson’s first interaction with the or caliber of model, the make, handgun. Henderson could not recall the He selected had a valid permit. Wong time, wanted to purchase. At this Wong firearm Although the 4473 form questions. some he wanted, handled it, and asked Henderson firearm recalled noting Henderson did provide certain information. filled out, Wong was not completely appeared to be that Wong Henderson said was not Vietnamese. that he (Wong) to Wong Henderson “touched” by Henderson’s observation. his whole life against in Vietnam told Henderson that he’d been discriminated Chinese. Wong to appreciate the fact that Henderson noted his seemed Wong because he was not Vietnamese. NAM of behavior that was unusual, threatening, or threatening, that was unusual, of behavior ual, threatening, or indicative of a potential red to find someone else who could help Wong, else red to find someone . This first episode with Wong was very brief, was Wong episode with . This first l firearm while a single firearm transaction was transaction while a single firearm l firearm -17- nd, again, asked Wong to repeat himself. repeat himself. to nd, again, asked Wong Henderson’s second interaction was when Mr. Wong later returned to buy a different later returned to buy interaction was when Mr. Wong Henderson’s second “flash,” frustrated, displaying what Henderson called a momentary then became Wong occurrence to the local press. Shortly about this second Later, Henderson commented Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 17 of 31 of 17 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case and at no time during it did Wong display any kind display any kind during it did Wong time and at no or others. threat to himself indicative of a potential to buy a his initial purchase, and now wanted regarding said he’d changed his mind gun. Wong of an additiona The purchase different firearm. of this. and Henderson advised Wong policy, Gander Mountain’s company pending is against understand. Henderson to Henderson in response that Henderson couldn’t said something Wong Unfortunately, Henderson still did so, verbatim. and Wong himself, to repeat asked Mr. Wong was saying a could not understand what Wong Henderson offe and “anger borne of frustration.” exchange lasted less than five (5) minutes. down. This entire calmed immediately and Wong and Randy Hilligus for further Bedrin off to James Henderson eventually passed Wong while Henderson went on to helped Mr. Wong assistance. Hilligus and Bedrin during it did at no time This second episode was, again, very brief, and help other customers. display any kind of behavior that was unus Wong or others. threat to himself Press and Sun Bulletin a Binghamton after the shootings Mr. Henderson received a call from He told Wong. and whether he knew permit, firearms reporter. He was questioned about Wong’s had described: that Wong the reporter “off the record” about the second interaction previously national origin did not appear to be Vietnamese origin did not appear national NAM (continued...) d his own actions this way: “I knew what I d his own actions ce that would have led you to suspect he was threat of indicative of a potential threat to himself or himself indicative of a potential threat to -18- start to finish…did Mr. Wong do or say anything in your earm and was working with Wong to finish the and was working with Wong earm llows concerning his interactions with Wong: ect that he was a threat to himself? agitated or emotionally upset in any way? agitated or emotionally

Henderson’s third interaction with Wong occurred when Wong returned to the store occurred when Wong Wong Henderson’s third interaction with 3 Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 18 of 31 of 18 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case harm to himself or others? to himself harm A: No. Q: Did he issue any kind of threats? A: No. disturbed or Q: Did he appear mentally A: No. A: No. Q: Did he do or say anything in any way in your presen presence that would have led you to susp During his deposition, Henderson testified as fo Q: Now, just again, during this entire time, from from Q: Now, just again, during this entire time, 3 was doing was wrong and there was a chance I could be terminated for it…” By the next day he for it…” be terminated and there was a chance I could was doing was wrong Press. New York Post and the Associated outlets like the media major from was getting calls by the BPSB reporter, who completely been “thrown under the bus” Henderson felt he’d what he’d said. mischaracterized approval coupon to he’d previously purchased. He presented the local to pick up a firearm He couldn’t find it right into the back vault to find the firearm. Henderson, and Henderson went counter to discover that he returned to the customer time, away. After searching for some the fir Clute had already retrieved Benjamin display any did Wong the others, was very brief. At no time purchase. This last episode, like threatening, or kind of behavior at was unusual, others. briefly gotten mad at him once while discussing a firearm, and that because of language and firearm, discussing a once while at him mad briefly gotten that at the time Henderson knew employee. off to another Mr. Wong he had to pass difficulties, he risked his Mountain policy, and that reporter was a violation of Gander his speaking to the describe by doing so. Mr. Henderson own termination NAM en he was upset, that very discrete period of time, did en he was upset, that very discrete period of time, at would have led you, in your discretion and based on at would have led you, ample would be: there he is again, you know, watch out would be: there he is again, you know, ample , verbally, any other kind of way that you could sense or ansaction, even though he had already bought the firearm, . . . ear to you, when he was voicing his displeasure, was he ear to you, when he was voicing his displeasure, -19- whoever the next person was because I stood right there whoever the next person was because I nger" lasted perhaps five seconds, and Henderson nger" lasted perhaps five seconds, and From 2006 until 2009 (the same time as he worked for Gander Mountain in Johnson City), in Johnson for Gander Mountain as he worked time 2009 (the same 2006 until From Deposition Transcript of David Henderson, at pp. 55-56. Deposition Transcript of David Henderson, at p. 57. Deposition Transcript of David Henderson, Deposition Transcript of David Henderson, at pp. 47-48. Deposition Transcript of David Henderson, Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 19 of 31 of 19 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case the original firearm. Q: You had the power to do that? A: Yes. See using foul language? no. A: Not that I remember, Q: Was kind of language that you perceived to be threatening? he using any A: No. No. you at that point in time? Q: Did he ever actually verbally threaten A: No. going to do this or that? Q: In other words, say to you, I'm A: No. Absolutely no. wh Q: Did he behave in any way during that period of time to himself? he behave in any way that would lead you to believe that he was a threat of harm A: No. Q: Did he behave in any kind of way, either physically observe that led you to suspect that he was a threat of harm to others? A: No. what would you have done? Q: Had he done so at that time, the conversation and the tr A: I would have terminated Q: Okay. Now, at that point in time when he made cl when he made Q: Okay. Now, at that point in time described his behavior during it as follows: Q: How long did that last? than ten seconds, five seconds. Very short. A: Not more down? else, he calmed going to get somebody Q: Once you said that I'm fine with A: He literally said, okay. Yes. He was sure what he was asking, that I understood. because I wanted to make See Q: Was in any way th there anything about his behavior your experience and training, to terminate that transaction then and there? that training, to terminate your experience and A: No. up to you and come there with Mr. WongQ: Now while you were did any other Gander Mountain employee … this up, but the ex making and I'm say anything to you, anything like that? to be aware of him; got trouble, you've for this guy, he's A: No. See Henderson testified that Mr. Wong's "flash of a (...continued) James Bedrin worked for the Broome County Government Security office on a part-time basis. basis. on a part-time Security office Government County for the Broome Bedrin worked James County Broome facilities, one of which was the security details at various public He was assigned 3 NAM kind of behavior. Bedrin denied that this kind of behavior. Bedrin denied ong was a threat of harm to himself or others. to himself ong was a threat of harm ong (who was sitting quietly by himself at a pod). quietly by himself ong (who was sitting -20- This was the first time Bedrin ever encountered Wong, and he would go on to have ever encountered Wong, Bedrin This was the first time plaintiff admissions, As a result of failing to respond to Gander Mountain’s requests for Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 20 of 31 of 20 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case Bedrin saw that Wong had a can of soda at the computer terminal, which was against library terminal, had a can of soda at the computer Wong Bedrin saw that turned to Mr. soda. Mr. Wong needed to get rid of his so, and that Wong Wong rules. Bedrin told his he didn’t get up from rights.” He said this quietly: my Bedrin and said “fuck you, I have voice, or otherwise cause a disturbance. Bedrin persisted, and chair, gesticulate wildly, raise his and threw the soda away. He walked to a nearby garbage can, the terminal, got up from Wong point were there raised At no quietly at the computer. working then sat back down, and resumed or any other such physical gestures, voices, animated Public Library. Mr. Bedrin worked evenings, and virtually every time he did security there, he he did every time and virtually worked evenings, Mr. Bedrin Public Library. of work as a first evening pods. On his very computer at one of the sitting Wong would see can of drinking a library that involved Wong had an encounter at the and Wong security guard, he As encountered Wong. Bedrin ever very first time pod. This was the soda at the computer by W his rounds, he walked Bedrin was making encounter was unusual or led him to suspect that W encounter was unusual or led him in three (3) years. Bedrin routinely saw Wong over the next him interactions with many many, in the each other’s presence. Bedrin saw Wong the library, and they regularly acknowledged and polite. In fact, Bedrin Their interactions were normal Johnson City store dozens of times. subsequently acted on his “best behavior” in the store because he was suspected that Wong about that first night in the library. embarrassed showing that Jiverly has no facts 1) plaintiff dispositive admissions: the following has made in Gander Mountain’s to anyone while he was present ever issued a verbal threat of harm Wong NAM Uniform Pretrial Scheduling Order to reflect Pretrial Scheduling Order to Uniform and contribution from the Wong estate on that the Wong and contribution from s showing that Jiverly Wong ever behaved in Wong s showing that Jiverly -21- ployees outside of Gander Mountain’s Johnson ployees outside of Gander Mountain’s harm to any Gander Mountain employee during any employee Gander Mountain to any harm The present motion was filed on October 1, 2012, and is unopposed. was filed on October 1, The present motion On December 16, 2011, Gander Mountain filed a third-party complaint against the estate third-party complaint 16, 2011, Gander Mountain filed a On December in the present action. Based thereupon, on March 27, Plaintiff never filed a jury demand Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 21 of 31 of 21 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case Johnson City store prior to the April 3, 2009, shootings; 2) Plaintiff has no facts showing that facts showing 2) Plaintiff has no shootings; to the April 3, 2009, City store prior Johnson a verbal threat of ever issued Jiverly Wong encounters with such employees outside of Gander Mountain’s Johnson City store prior to the Johnson City store prior outside of Gander Mountain’s such employees encounters with 3) Plaintiff has no fact April 3, 2009, shootings; the case would be tried as a bench trial. that given the absence of a jury demand, III. DISCUSSION manner that indicated a threat of harm to anyone while he was present in Gander Mountain’s to anyone while he was present a threat of harm that indicated manner showing that and 4) Plaintiff has no facts prior to the April 3, 2009, shootings; Johnson City store Mountain to any Gander that indicated a threat of harm ever behaved in manner Jiverly Wong during any encounters with such em employee shootings. City store prior to the April 3, 2009, were the sole, proximate crimes that Wong’s alleged complaint The third-party of Jiverly Wong. and sought indemnity cause of plaintiff’s damages June 28, 2012, file a responsive pleading. On failed to appear or timely estate basis. The Wong against the Wong for a certificate of entry of default judgment Gander Mountain filed a request was filed on June 29, 2012. On June 29, 2012, Gander estate. A Clerk’s entry of default estate. This Court granted against the Wong for default judgment Mountain filed a motion 2012. on July 18, for default judgment Gander Mountain’s motion the 2012, Magistrate Judge David Peebles amended NAM at ., 43 Id. , 322 ., 477 U.S. See Celotex See Giannullo v. City of New York Anderson v. Liberty Lobby, Inc fying in the record the assertions in the uth-finding functions of the judicial process See Chambers v. TRM Copy Ctrs. Corp See Chambers v. -22- , 43 F.3d at 36 (citing See Chambers , 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56 (c), (e)). , 477 U.S. 317, 324 (1986) (quoting A court may grant a motion for summary judgment only if it determines that there is no that there only if it determines judgment summary for grant a motion may A court the fact exist, issues of material whether any such In assessing the record to determine On October 26, 2005, the Protection of Lawful Commerce in Arms Act (“PLCAA”), Arms in On October 26, 2005, the Protection of Lawful Commerce Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 22 of 31 of 22 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case genuine issue of material fact to be tried and that the facts as to which there is no such issue facts as to which there is no such fact to be tried and that the material genuine issue of of law. as a matter the movant for warrant judgment the motion, judgment analyzing a summary When (citations omitted). F.3d 29, 36 (2d Cir.1994) be tried.” whether there are issues to issues of fact; it can only determine court “cannot try party opposing a it is well-settled that a Moreover, and other citation omitted). 36–37 (quotation rely on the assertions in its pleading. not simply may judgment for summary motion Corp. v. Catrett the of in favor and draw all reasonable inferences court is required to resolve all ambiguities party. nonmoving either does not respond to the the non-movant Where omitted). 242, 255 (1986)) (other citations not rely solely court may facts, the of material statement or fails to dispute the movant's motion to be satisfied that the citations rather, the court must Rule 56.1 statement; party's on the moving assertions. movant's evidence in the record support the A. Legal Standard Applicable F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not veri “would derogate the tr judgment for summary motion by substituting convenience for facts”). B. Act (“PLCAA”) in Arms The Protection of Lawful Commerce purpose is: stated primary federal law. The PLCAA's codified at 15 U.S.C. §§ 7901–03, became NAM § 7901(a) Id. stributed in interstate or foreign or ammunition products, and their products, or ammunition rs of firearms that operate as designed and that operate rs of firearms -23- gn commerce] by the person or a third gn commerce] § 7901(a) (5). Congress found egregious “[t]he possibility of Id. To prohibit causes of action against manufacturers, distributors,To prohibitagainst manufacturers, of action causes firearms of and importers dealers, party. trade associations, for the harm solely caused by the criminal or by the criminal solely caused the harm for trade associations, by others products or ammunition products firearm of misuse unlawful functioned as designed and intended. when the product brought by any person againsta civil action or proceeding ... a di or seller of a [firearm manufacturer injunctive or punitive damages, ... for damages, commerce] restitution, fines, or penalties, or other declaratory relief, abatement, therelief, resulting from criminal of a [firearm or unlawful misuse distributed in interstate or forei Congress enacted the PLCAA in response to “[l]awsuits ... commenced against response to “[l]awsuits ... commenced Congress enacted the PLCAA in The PLCAA provides that any “qualified civil liability action that is pending on October liability action that is pending civil that any “qualified The PLCAA provides Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 23 of 31 of 23 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case § 7901(b) (1). The PLCAA mandates dismissal of lawsuits against gun retailers unless the lawsuits against gun retailers unless of dismissal The PLCAA mandates § 7901(b) (1). 15 U.S.C. § 7903 (5) (A). dealers, and importe distributors, manufacturers, Id. of firearms. to sale or marketing a federal or state statute applicable retailer has violated or is court in which the action was brought by the dismissed immediately 26, 2005, shall be 7902(b). A “qualified civil liability action” is: currently pending.” 15 U.S.C. § of caused by the misuse and other relief for the harm damages intended, which seek money that 15 U.S.C. § 7901(a) (3). Congress found criminals.” by third parties, including firearms caused by “are not, and should not, be liable for the harm and sellers of firearms manufacturers products that function products or ammunition firearm or unlawfully misuse those who criminally as designed and intended.” caused by others.” that is solely liability on an entire industry for harm imposing (6). civil liability a “qualified of to the definition six exceptions for The PLCAA provides NAM see See , 95 N.Y.2d See McCrink v. City , 85 Misc 2d 734, 741 Rios v Smith , See ., 96 N.Y.2d 222, 237 (2001). The , 6 Misc 2d 1000, 1002 (Sup. Ct. 1957) upplies ... a chattel for the use of another whom upplies ... a chattel for the use of -24- Allstate Ins. Co. v. Reliance Ins. Co. , 146 A.D.2d 333, 335 (3d Dep’t 1989); Restatement , 146 A.D.2d 333, 335 (3d Dep’t See Hamilton v. Beretta U.S.A. Corp 15 U.S.C. § 7903(5) (A) (ii). “ ‘[N]egligent entrustment’ means the means (A) (ii). “ ‘[N]egligent entrustment’ 15 U.S.C. § 7903(5) See Splawnik v Di Caprio Sickles v. Montgomery Ward & Co. 15 U.S.C. § 7903(5) (A) (i)-(vi). Most relevant to this case, a “qualified civil a “qualified to this case, (i)-(vi). Most relevant § 7903(5) (A) 15 U.S.C. , 296 N.Y. 99, 107 (1947); See Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 24 of 31 of 24 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case 15 U.S.C. § 7903(5) (B). The PLCAA standard mirrors the standard for the tort of negligent the standard for mirrors (B). The PLCAA standard 15 U.S.C. § 7903(5) based on the degree of knowledge the supplier of a under New York law which is entrustment in an improper propensity to use the chattel the entrustee's chattel has or should have concerning or dangerous fashion. entrust it to a responsible person is under a duty to instrument owner or possessor of a dangerous to others. risk of harm whose use does not create an unreasonable 647, 652 (2001); “[o]ne who s [Second] of Torts § 390). Indeed, to know to be likely because of his youth, inexperience, or the supplier knows or has reason ... is to himself unreasonable risk of physical harm involving otherwise, to use it in a manner [Second] of Torts § 390 (Restatement resulting to them.” subject to liability for physical harm the entrustee's [1965]. If such knowledge the supplier had or should have had concerning the supplier or dangerous fashion can be imputed, propensity to use the chattel in an improper the entrustee. owes a duty to foreseeable parties to withhold the chattel from of New York action.” or entrustment a seller for negligent brought against include an action action” does not liability negligence per se. supplying of a qualified product by a seller for use by another person when the seller knows, or by another person when the seller product by a seller for use supplying of a qualified to, and does, use the the product is supplied is likely know, the person to whom reasonably should or others.” of physical injury to the person involving unreasonable risk product in a manner (Sup. Ct. 1976); NAM a firearm, an antique firearm, ammunition, or ammunition, an antique firearm, a firearm, -25- , 519 So.2d 1092, 1094-95 (Fla. App. 1988) (duty of gun owner to avoid (duty of gun (Fla. App. 1988) 1092, 1094-95 , 519 So.2d 15 U.S.C. §7903(6) defines a "qualified seller'' as a licensed firearms importer, a licensed importer, as a licensed firearms defines a "qualified seller'' 15 U.S.C. §7903(6) Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 25 of 31 of 25 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case entrusting gun to person known to be violent and dangerous). and dangerous). known to be violent gun to person entrusting C. Application of PLCAA 1. Seller Gander Mountain is a Qualified Whether in interstate or foreign in the business of selling ammunition dealer, or a person engaged firearms dealer, and Mountain is a licensed firearms the wholesale or retail level. Gander at commerce In addition, and ammunition. long arms, License to buy and sell pistols, holds a Federal Firearms in several states, a significant outdoor outfitting companies Gander Mountain operates retail Based thereupon, the and ammunition. of which retail business is the sale of firearms segment is a "qualified seller" pursuant to the PLCAA. Court finds that Gander Mountain 2. "Qualified Products" Purchased Were Wong the Firearms Whether as product'' 18 U.S.C. §7903 (4) defines a "qualified that has been shipped or transp0rted interstate or or ammunition, part of a firearm a component obviously during the shootings were The 92 FS and the PX4 used by Wong foreign commerce. from buying them prior to Wong commerce and both had travelled through interstate firearms, Gander City store from Gander Mountain. The Beretta 92 FS was transferred to the Johnson The Beretta PX4 was Mountain Store #340, which is located in Fredericksburg, Virginia. an FFL located in Minneapolis, Minnesota. Thus, the transferred to the Johnson City store from Gander Mountain were "qualified products" purchased from Court finds that the guns Wong the PLCAA. of within the meaning 3. Legal Were to Wong Sales of Guns Whether also, Foster v. Arthur also, Foster NAM e events transpired prior to the transfer of e events transpired prior to the transfer -26- Gander Mountain initially requested a NICS check on Mr. Wong in connection with the a NICS check on Mr. Wong Gander Mountain initially requested Gander Mountain, as the holder of a valid FFL, was lawfully permitted to sell the 92 FS to sell the permitted FFL, was lawfully holder of a valid as the Gander Mountain, Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 26 of 31 of 26 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case and the PX4 to Jiverly Wong. At the time of both sales, Wong was the holder of a valid Broome was the holder sales, Wong of both time At the to Jiverly Wong. and the PX4 was or revoked. As such, he that had never been suspended carry permit County restricted sales of the 92 FS Gander Mountain. The from to buy the 92 FS and the PX4 lawfully permitted Mountain Gander waiting period requirements. all background check and and the PX4 satisfied 2008, Gander on March 7, 2008. On March 9, check for the sale of the 92 FS requested a NICS Wong of the 92 FS to Wong. the FBI authorizing the sale response from received a "proceed', the Broome and obtained a coupon for that sale from then had the 92 FS added to his permit 18, 2008. All of thes County Court on or about March on March 21, 2008. the 92 FS by Gander to Wong the response from Gander Mountain received a "proceed,' sale of the PX4 on January 30, 2009. County Court to of the Broom written permission obtained the FBI on February 1, 2009. Wong 2009 and subsequently had the PX4 added to his restricted purchase the PX4 on February 12, City store to finish the PX4 Johnson did not return to Gander's Because Wong carry permit. was initially than thirty (30) days after the 4473 form (more transaction until March 11, 2009 had to be filled out, and a new filled out and the NICS check was requested), a new 4473 form March 11, for the sale of the PX4. This was done on background check had to be completed was started. On the for the PX4 was voided, and a new 4473 form 2009. The original 4473 form date, Gander Mountain requested a second NICS check in connection with the sale of the same the FBI. Under federal law, response from PX4. The second NICS request produced a "delay'' further NICS response was the PX4 could be transferred by March 17, 2009, in the event no NAM not receive any further response from NICS by response from not receive any further l or legal arguments from plaintiff concerning from l or legal arguments -27- Defendant avers that all of the 4473 forms filled out by Wong and Gander Mountain were and Gander Mountain filled out by Wong that all of the 4473 forms Defendant avers He criminal. actions on April 3, 2009, were Wong’s There is no doubt in this case that as a civil action for 15 U.S.C. § 7903(5) (A) defines a "qualified civil liability action" Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 27 of 31 of 27 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case March 21, 2009, it transferred the PX4 to Wong. March 21, 2009, that was accurate. Defendant asserts on them contained and the information properly, completed with complied to Wong Gander from transfers of the 92 FS and PX4 detailing the the 4473 forms the and U.S.C. § 921. After having reviewed the forms the Gun Control Act of 1968, 18 of any factua applicable law and in the absence the subject guns to Wong the Court finds that the sales of deficiencies in the gun sales to Wong, in this case were legal. 4. Criminal the 92 FS and the PX4 on April 3, 2009 Was Use of Wong's Whether get out. He then entered exit of the ACA so those inside couldn't used his car to barricade the rear of the loaded PX4 and 92 FS pistols, which he used to shoot the front of the ACA in possession Mr. (4) others. Several of individuals, and to seriously injure four and kill thirteen (13) unarmed of his knew any than once. There is no evidence that Wong more were shot victims Wong's shootings were factually There is no proof that Wong's were armed. or that any of them victims, accidental. These facts are undisputed shootings were justified. There is no evidence that Wong's and unquestionably tragic. 5. is a “Qualified Civil Liability Action” under the PLCAA the Present Complaint Whether received by that date. However, Gander Mountain, following its own, more extended "waiting extended its own, more Mountain, following Gander by that date. However, received check to hear the second NICS date it requested the (10) days from waited ten period" policy, Mountain did Gander FBI. When the back from NAM that Wong posed a threat to himself or the posed a threat to himself that Wong claimed that Bedrin and Wong had interaction that Bedrin and Wong claimed ng that Gander Mountain knew, or should have ng that Gander Mountain knew, -28- ought to have put Gander Mountain on notice of Plaintiff has presented no evidence showi Plaintiff has presented no evidence threatening behavior that plaintiff has identified The only supposed witnesses to Wong's Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 28 of 31 of 28 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case known, that Wong would use the 92 FS or PX4 pistols in a manner that posed an unreasonable pistols in a manner would use the 92 FS or PX4 known, that Wong and or physical evidence to support this claim, no testimonial to others. There is risk of harm dispositive has made defendant’s request for admissions, plaintiff, by failing to respond to upon review of further matter, As a to support it this claim. that he possesses no facts admissions questions concerning the Court is unable to discern material the evidentiary record in this case, or should have known whether Gander Mountain knew public. Bedrin and David Henderson. Plaintiff are James that County Public Library at the Broome damages and other relief, brought by any person against a manufacturer or seller of a firearm that firearm or seller of a a manufacturer person against brought by any and other relief, damages or the criminal from resulting or foreign commerce, interstate shipped or transported has been seeks $3.5M against Gander Mountain The plaintiff’s complaint the firearm. of unlawful misuse the used either the 92 FS or Wong solely on the fact that Jiverly and is predicated in damages, As the ACA on April 3, 2009. Khalil while she was inside kill Layla Salman PX4 to shoot and Thus, the Court on that date were patently criminal. actions of Jiverly Wong shown above, the under the PLCAA. a "qualified civil liability action" constitutes complaint finds that plaintiff’s 6. Complaint Applies to Plaintiff’s Exception the “Negligent Entrustment” Whether Wong's potential danger. But as referenced above in Bedrin deposition testimony, his brief initial deposition testimony, potential danger. But as referenced above in Bedrin Wong's of the library did not area over having a contraband soda in the computer encounter with Wong alleges that Plaintiff physical gestures on the part of Wong. result in raised voices or animated NAM cident. Wong spoke quietly to Bedrin, he did spoke cident. Wong rm to himself or others. Henderson described to himself rm in Klute) knew that Wong was a "regular" in in Klute) knew that Wong on offered to find someone else who could help on offered to find someone sturbance. Bedrin said that nothing about this sturbance. Bedrin -29- on found Wong's frustrations understandable. on found Wong's dent ought to have put Gander Mountain on notice Mountain to have put Gander dent ought the store by himself and never caused trouble. and the store by himself The same is true of the testimony provided by David Henderson. Wong was well known Wong provided by David Henderson. is true of the testimony The same Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 29 of 31 of 29 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case not get up from his chair or otherwise cause a di his chair not get up from or others. Moreover, himself to was a threat of harm suspect that Wong to encounter led him more many went on to have many, Bedrin encounter with Wong, after this initial unpleasant in the library, saw Wong three (3) years. Bedrin routinely over the next Wong interactions with in the Johnson City presence. Bedrin saw Wong each other's and they regularly acknowledged Bedrin and polite. In fact, normal Their interactions were always times. store dozens of behavior" in the store because he was subsequently acted on his "best suspected that Wong about that first night in the library. embarrassed and Benjam to Henderson. Henderson (like Bedrin always visited who department the firearms ever led Henderson to and none of these interactions with Wong Henderson had several personal an unreasonable risk of ha posed suspect that Wong showed a flash of anger caused by Henderson's how, during one of these interactions, Wong "flash" was saying. Henderson called it a momentary repeated inability to understand what Wong Henders and "anger borne of frustration." When down. Henders calmed he immediately Wong, during At no time (5) minutes. According to Henderson, the entire exchange lasted less than five any kind of behavior that was unusual, display to Henderson this episode or any other, did Wong Mr. Wong's cursing at Bedrin during this inci at Bedrin during cursing Mr. Wong's of Wong's potential for harm. However, it was clear from Bedrin’s testimony, that he was not that Bedrin’s testimony, from it was clear However, potential for harm. of Wong's or behavior during this in words by Wong’s alarmed NAM coupons for both sales. Based upon the Court’s deo clips show Mr. Wong standing calmly at the standing calmly Wong deo clips show Mr. ong behave in an agitated, angry, threatening or ong behave in an himself or others. Defendant argues and the Defendant argues or others. himself -30- found nothing in Mr. Wong's un-redacted firearms found nothing in Mr. Wong's Gander's Mountain’s surveillance cameras captured footage of Mr. Wong inside the captured footage of Mr. Wong surveillance cameras Mountain’s Gander's Mr. Wong was granted a Broome County restricted carry firearms permit in 1997. In the permit restricted carry firearms County was granted a Broome Mr. Wong Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 30 of 31 of 30 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case threatening or indicative of a potential threat to of a potential threat or indicative threatening Court agrees that like the "library incident," this episode was possibly regrettable, but hardly a but hardly was possibly regrettable, this episode "library incident," that like the Court agrees would later take. Wong predictor of the terrible actions reasonable or accurate on different occasions. The vi Johnson City store gun counter in the Johnson City store, speaking with various Gander Mountain employees and various Gander Mountain employees Johnson City store, speaking with gun counter in the At no point, does Mr. W inspecting firearm(s). was in possession relevant herein, Mr. Wong on video. Moreover, at all times aggressive manner passed that: Wong meant possession of that permit Mr. Wong’s of a valid restricted carry permit. hygiene that background and mental background, personal all investigation(s) of his criminal buying a from issuance, and that nothing disqualified him were conducted prior to the permit's that he gun. Undersheriff Alex Minor testified to sufficient flag" constituted a ''red and returned records that application or the completed permit deny the application. about Mr. Wong complaints or other criminal leading up to April 3, 2009 no twelve-year interim was valid at permit that Wong's were ever received by the BCSD. Undersheriff Minor confirmed passed NICS Wong in his possession at that time. of the shootings, because it was the time check on the PX4 produced a checks for the sales of the92 FS and the PX4. After a second NJCS' the BCSD, or the FBI, from response, Gander Mountain never received any information "delay'' go forward. Mr. Wong indicating that the sale of the PX4 shouldn't any other law enforcement County Court was successful in obtaining Broome NAM -31- Based on the foregoing, the Court finds that this case is a “qualified civil liability action” case is a “qualified civil liability the Court finds that this Based on the foregoing, #29) is GRANTED and (Dkt. judgment for summary ORDERED that defendant’s motion IT IS SO ORDERED. Date: 20, 2013 September Case 3:11-cv-00384-NAM-DEP Document 34 Filed 09/20/13 Page 31 of 31 of 31 Page 09/20/13 Filed 34 Document 3:11-cv-00384-NAM-DEP Case under the PLCAA and further, that the “negligent entrustment” exception does not apply insofar exception entrustment” and further, that the “negligent under the PLCAA the civil liability action.” Therefore, the definition of a “qualified this action from as removing under the PLCAA as unlawful. Thus it, is hereby be dismissed action must with prejudice. is hereby dismissed the complaint review of the record in this case, there is simply no evidence demonstrating that prior to the sales that no evidence demonstrating there is simply record in this case, the review of posed an Wong have known that knew or should Gander Mountain FS d the PX4, of the 92 others. or to himself of harm unreasonable risk IV. CONCLUSION NAM